Government and
Governance
LUMSA
The principle of the separation of
powers and the Rule of law
The
principle of the separation of powers
and the principles of: legality, nondiscrimination/equality and freedom are
basic elements of the Rule of law
Separation of powers– theoretical model of
the Enlightenment based on the English
experience It avoids the concentration of the political
power (one person or one social class)
The tripartite system of separation
of political powers
Legislative,
Each
Executive, Judiciary
power should be exerted by a
different branch of the government
The symmetry between acts and
institutions in the classical tripartite
system
It
is assumed a symmetry among the different
types of actions and the Institutions
Each institution 1) serves a function 2) through
specific means of action “moyens d’action”
Powers
Legislative
branch – Parliament - law
Executive
branch - Government- executes
laws in general
Judiciary
branch – Courts – Decisions
Difficult application of the clear-cut
principle of separation of powers..
The
model of the clear-cut division of
powers mandates that each branch of the
government has its own prerogatives and
specific means of action: each power has a
prerogative
Nowadays
the theoretical model is
impracticable, and probably it has never
been entirely applied.
Cooperation among Powers
Montesquieu_
De l’esprit des lois (1758)
The
three powers should rest: but due to the
necessary movements of things they will be forced
to act in concert
“Les
trois pouvoirs devraient rester en repos:
Mais pour le nécessaire mouvement les choses
seront contraintes à procéder de concert”
The model doesn’t fit the EU
-inapplicability of the model to the EU-
A fixed application of the separation of
power is impracticable too: each
Institution exercise different functions
through many ways of action
The EU Commission exercises the
legislative power (initiative) and the EU
Parliament and the Council are colegislators
Powers and functions of the EU Institutions
a) The European Commission
The Commission:
-- It shall oversee the application of Union law
shall oversee the right application of primary and
secondary European Union law;
-- It can issue recommendations and opinions;
-- It participate the decisional activity of other
Institutions (right of initiative and intervention
during the legislative procedure);
-- it can exercise pure normative power or
delegated by the Council of Ministers
-- Proposal: green papers, white papers,
programmes

Asymmetry and Separation
At
European Union level it is difficult to
imagine a rigid separation of powers
The EU Commission has many functions:
legislative, the task to represent the general
interest of the Union, the job to put EU’s
common policies. These functions are
attained by means of different “ways of
action”.
b) The European Council
According
to the TEU the EU Council defines the
general political directions and priorities of the
Union (main centre of political decision) it
exercises:
-The coordination of the general economic policies
of Member States;
-Pure normative power
-Decides and carries out the CFSP (art. 26 TEU)
-Coordinates the action of the MS and adopts
decisions concerning police and judicial
cooperation (criminal law)
-Entrusts the Commission with the regulatory
power of execution
Definition:
The Council
The Council = Council of Ministers
Acts:
Normative: regulations, directives
Decisions, actions, positions (CFSP)
Conclusions, declarations, resolutions,
opinions
AFSJ (ex III pillar + asylum and
immigration law)
 International Agreements
The Council
According
to the Treaty establishing the European
Economic Community (Rome 1957), the Council
played the role of legislator in a context of
separation of powers from the Commission
At the beginning as a general rule, and now
according to the Treaty, the Council cooperates
with the Commission during the legislative process
The Council, jointly with the European Parliament,
exercise the legislative function (ordinary
legislative procedure = codecision)
c) The European Parliament
The
European Parliament:
- exercises the legislative power together
with the Council.
- exercises functions of political and
budgetary control:
1.It approves the budget of the Union
(Council);
2.It exercises a function of control on the
activity of the Commission and of the
Council;
The EU Parliament
The
EU Parliament has gained more power
in the process of appointment of the
Commission
Motion of censure.
Plurality of functions - plurality of
instruments (normative or not, and binding
or not).